TIMOTHY HILL v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

TIMOTHY HILL, Appellant v. THE STATE OF TEXAS, Appellee

No. 05-09-01398-CR

Decided: February 23, 2011

Before Justices Moseley, Bridges, and O'Neill

OPINION

Opinion By Justice Bridges

Timothy Hill appeals the trial court's Article 64.04 Findings on the Results of Post-Conviction DNA Testing.   Specifically, appellant challenges the trial court's finding, following post-conviction DNA testing, that it was not reasonably probable that appellant would not have been convicted if the testing results had been available at trial.   In a single issue, appellant argues the trial court erred in its finding.   We affirm.

In January 1998, pursuant to a plea bargain agreement, appellant pleaded guilty to aggravated sexual assault and was sentenced to twenty-two years' confinement and a $1000 fine.   In November 2003, appellant filed a motion for post-conviction DNA testing, which the trial court denied.   In July 2007, appellant filed his second motion for post-conviction DNA testing.   The State filed a response in which it stated it did not oppose DNA testing, and the trial court granted appellant's motion and ordered DNA testing of a vaginal swab from the victim and buccal swabs from appellant and the victim.   Following testing, the trial court conducted a hearing at which the State presented a report from the Southwestern Institute of Forensic Sciences indicating appellant was included as a possible source of DNA obtained from the sperm-cell fraction of the vaginal swab.   Appellant did not object to the admission of the report into evidence.   According to the report, the probability of selecting, at random, an unrelated individual with the same DNA profile as the non-victim DNA obtained from the sperm-cell fraction of the vaginal swab is 1 in 738 quadrillion in the African-American population.   Following the hearing, the trial court concluded that, had these DNA test results been available during the trial of the offense, it was not reasonably probable that appellant would not have been convicted.   The trial court also entered written findings to this effect.   This appeal followed.

In a single issue, appellant argues the trial court erred in finding it is not reasonably probable that he would not have been convicted had the DNA results been available at trial.   Specifically, appellant complains of “numerous irregularities” with respect to (1) delay in the disclosure of evidence containing biological material;  (2) typographical errors, subsequently corrected, in an initial report from the Department of Public Safety;  and (3) the reliability of the DNA test results.   However, by failing to object to the admission of the report on any of these bases at trial, appellant has waived these complaints.   See Tex.R.App. P. 33.1(a);  Dixon v. State, 2 S.W.3d 263, 265 (Tex.Crim.App.1998) (to preserve error for appellate review, complaining party must make a timely, specific objection).   We overrule appellant's sole issue.

We affirm the trial court's Article 64.04 Findings on the Results of Post-Conviction DNA Testing.

DAVID L. BRIDGES JUSTICE

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